Preparation of Statistics Report

Statistics prepared in the following manner will be considered as being acceptable under competition law:

• Independent Compiler
  Commercially sensitive data must not be compiled by a member or representative of a member but only by an independent body that is entirely independent from IGI or any member.  Compilation of data should ensure anonymity.
  No access to commercially sensitive information
  Any commercially sensitive information from individual members collated by IGI or by an independent compiler should not be accessible by the members of IGI.
  Computer programmes should be password protected and the paper copies of the sensitive information should be kept in a locked cupboard.  A cover note in front of the paper copy should make it clear that the information is not to be disclosed to members.
• Aggregated Data
  Information compiled from commercially sensitive information should not be so accurate that individual companies’ details are provided or that it is possible for IGI’s members to reverse engineer the results to work out their competitors’ positions.
  This means that the data should be compiled by reference to sectors where there are a sufficient number of players.  Where there are three players or less in a given market or market segment, it should be discussed with IGI’s external lawyers whether it is necessary that the information is expanded to include other broader markets in order that accurate information is not disclosed. IGI’s external lawyers’ advice must be followed.
• Historical Data
  Exchanges of aggregate information which is based on commercially sensitive information must relate to past market conditions so that it cannot be used by competitors to determine the future conduct of rivals. As a rule of thumb, such information should be at least a full 12 months old.
  Public Data
  IGI’s members can be provided with publicly available information.  However, publication of individualised commercially sensitive information does not make that information lawful where the information was provided by IGI’s members in the first place (e.g. to an industry magazine).
  Information provided in Annual Reports which involve disclosure of output and future conduct etc. should still not be discussed with competitors.
  If the data used has been made available through public channels such as official customs or trade reports, it would be useful to make it clear from where the information first appeared.

Drafting Correspondence

In general, correspondence between the members, minutes of meetings, diary entries, notes at meetings, documents handed out at meetings and computer records (including emails) can be copied in the course of an investigation for alleged breach of competition law by the European Commission.
However, correspondence with external lawyers on issues relating to competition law issues may be protected and should be clearly marked by the external lawyers concerned as being subject to legal privilege.
Correspondence with in-house lawyers is not guaranteed protection from the scope of an investigation.  Any documents sent to in-house counsel with a view to subsequent obtaining external legal advice on competition law compliance should be clearly marked “Confidential and Legally Privileged – Documents for External Legal Advice”.
In the event of an investigation, IGI or a member should not allow copies to be taken of documents marked as being subject to legal privilege.  If there is any doubt, these documents should be placed in a sealed envelope (signed by the company and the European Commission or national competition authority) for the European Courts or national court to determine whether the documents are subject to legal privilege.

Further Reading

Further reading can be found on the website of the Directorate-General for Competition of the European Commission: www.ec.europa.eu/competition